Lantner v. Carson

CourtUnited States State Supreme Judicial Court of Massachusetts
Writing for the CourtBefore HENNESSEY; HENNESSEY
Citation374 Mass. 606,373 N.E.2d 973
Decision Date10 March 1978

Page 973

373 N.E.2d 973
374 Mass. 606
Gary H. LANTNER et al.
v.
John CARSON et al.
Supreme Judicial Court of Massachusetts, Essex.
Argued Dec. 8, 1977.
Decided March 10, 1978.

Page 974

[374 Mass. 607] Michael A. Gerstein, Lawrence, for plaintiffs.

Albert Conlon, Topsfield (Thomas Valkevich, Lynnfield, with him), for defendants.

Before [374 Mass. 606] HENNESSEY, C. J., and QUIRICO, BRAUCHER, WILKINS and LIACOS, JJ.

[374 Mass. 607] HENNESSEY, Chief Justice.

In March, 1977, the plaintiffs commenced an action under G.L. c. 93A, inserted by St.1967, c. 813, § 1, commonly known as the Consumer Protection Act, against the defendants who as private individuals sold them their home. The complaint sought treble damages, attorneys' fees, and other relief in connection with the repair of several defects discovered by the plaintiffs after they took occupancy.

The defendants filed a motion to dismiss the complaint under Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974), which motion was allowed. Judgment was entered accordingly, and the case was dismissed. Thereafter, the plaintiffs appealed, asserting that the remedial provisions of G.L. c. 93A apply, even where the consumer transaction at issue is the isolated sale of a private home. 1 We granted direct appellate review.

It is well established that in proscribing "unfair or deceptive acts or practices in the conduct of any trade or commerce" (G.L. c. 93A, § 2) the consumer protection statute reaches "(a) wide range of activities," Commonwealth v. DeCotis, 366 Mass. 234, 239, 316 N.E.2d 748 (1974), including the "sale . . . of any . . . property, . . . real, personal or mixed." G.L. c. 93A, § 1(b ). We conclude, however, that as broadly and expansively as the statute applies to the regulation of [374 Mass. 608] business practices, see Slaney v. Westwood Auto, Inc., 366 Mass. 688, 693, 322 N.E.2d

Page 975

768 (1975), G.L. c. 93A is not available where the transaction is strictly private in nature, and is in no way undertaken in the ordinary course of a trade or business. Accordingly, we affirm the dismissal of the plaintiffs' complaint.

For the purposes of our ruling on the motion to dismiss, we accept as true the factual allegations in the complaint. Slaney v. Westwood Auto, Inc., supra at 690, 322 N.E.2d 768; Fred C. McClean Heating Supplies, Inc. v. Westfield Trade High School Bldg. Comm., 345 Mass. 267, 269, 186 N.E.2d 911 (1962); Shea v. Shea, 296 Mass. 143, 144, 4 N.E.2d 1015 (1936). They are as follows. Under an agreement dated April 12, 1976, the plaintiffs agreed to buy and the defendants agreed to sell the premises at 48 Georgetown Road, Boxford, which property was the private residence of the defendants. The purchase and sale agreement, drawn by Wini McDuff as the broker, 2 provided in part that: "This agreement is made . . . subject to the following: Water turned on, well functional, and water quality tests acceptable." Prior to this written agreement, the defendants had made other representations, namely that (1) the evident damage to second floor ceilings was a result of a defective roof which had since been repaired; and that (2) the second floor fireplace was stuffed with paper to avoid drafts, but was otherwise in complete working order.

The sale was consummated on or about May 19, 1976. The plaintiffs took occupancy on June 8, 1976. Almost immediately thereafter, difficulties developed.

First, on June 10, 1976, the water pump failed. Inspection and repair work revealed that the plaintiffs had been informed incorrectly as to the type of well on the property, and that its pump apparatus was inadequate and defective.

Second, in August, 1976, the well almost ran dry. During that time, the plaintiffs experienced several problems, [374 Mass. 609] including lack of water. As a result the pipes sucked in sand. A professional investigation disclosed that the functioning of the well was "marginal."

Third, in December, 1976, the plaintiffs replastered the damaged second floor ceilings. After several snowfalls it became apparent that, contrary to the defendants' representations, the roofing leaks which caused the original damage had not been repaired. As a result, water penetrated both the second and first floors.

Finally, after contracting for the cleaning of the second floor fireplace, the plaintiffs discovered that the fireplace was not merely "stuffed with paper to avoid drafts," but in fact was partially reconstructed from newspaper "bricks." The newspaper had been covered with a one-eighth inch coat of plaster and painted black.

The plaintiffs repaired these defects. On January 17, and February 10, 1977, in compliance with G.L. c. 93A, § 9(3), 3 the plaintiffs sent to the defendants a written demand for relief. Having received no tender of settlement from the defendants within thirty days of the demand, the plaintiffs commenced the instant action.

1. For the purpose of our subsequent analysis, it is useful at this time to review briefly the applicable sections of G.L. c. 93A. Through § 9(1), as amended through St.1971, c. 241, G.L. c. 93A provides a private right of action to "(a)ny person who purchases . . ....

To continue reading

Request your trial
159 practice notes
  • In re Pharm. Industry Average Wholesale Price Lit., No. 08-1056.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • September 23, 2009
    ...which the Massachusetts Supreme Judicial Court ("SJC") has interpreted to mean persons "acting in a business context." Lantner v. Carson, 374 Mass. 606, 373 N.E.2d 973, 976 (1978).27 582 F.3d 192 Calling the distinction between § 9 and § 11 "as clear as mud," the district court cited Linkag......
  • In re Myford Touch Consumer Litig., Case No. 13–cv–03072–EMC
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • February 14, 2018
    ...through some sort of individualized proceeding. However, that question has not been brought before the Court.20 See Lantner v. Carson , 374 Mass. 606, 609, 373 N.E.2d 973 (1978) (stating that Section 9"provides a private right of action to any person who purchases ... property ... primarily......
  • Whitinsville Plaza, Inc. v. Kotseas
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • May 15, 1979
    ...870, 872 (1977). Accord, Dziokonski v. Babineau, --- Mass. ---, --- A, 380 N.E.2d 1295 (1978); Lantner v. Carson, --- Mass. ---, --- B, 373 N.E.2d 973 (1978). These are as follows. In 1968, Kotseas conveyed certain land identified as "Parcel A" to four individuals as trustees of the "122 Tr......
  • Johnson v. Martignetti
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • April 11, 1978
    ...we may refer to related statutory provisions to determine the meaning of the phrase in § 15. Cf. Lantner v. Carson, --- Mass. ---, --- c, 373 N.E.2d 973 (1978). Section 15A of c. 138 indicates that, with regard to the granting of liquor licenses, the broad legislative concern with direct or......
  • Request a trial to view additional results
159 cases
  • In re Pharm. Industry Average Wholesale Price Lit., No. 08-1056.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • September 23, 2009
    ...which the Massachusetts Supreme Judicial Court ("SJC") has interpreted to mean persons "acting in a business context." Lantner v. Carson, 374 Mass. 606, 373 N.E.2d 973, 976 (1978).27 582 F.3d 192 Calling the distinction between § 9 and § 11 "as clear as mud," the district court cited Linkag......
  • In re Myford Touch Consumer Litig., Case No. 13–cv–03072–EMC
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • February 14, 2018
    ...through some sort of individualized proceeding. However, that question has not been brought before the Court.20 See Lantner v. Carson , 374 Mass. 606, 609, 373 N.E.2d 973 (1978) (stating that Section 9"provides a private right of action to any person who purchases ... property ... primarily......
  • Whitinsville Plaza, Inc. v. Kotseas
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • May 15, 1979
    ...870, 872 (1977). Accord, Dziokonski v. Babineau, --- Mass. ---, --- A, 380 N.E.2d 1295 (1978); Lantner v. Carson, --- Mass. ---, --- B, 373 N.E.2d 973 (1978). These are as follows. In 1968, Kotseas conveyed certain land identified as "Parcel A" to four individuals as trustees of the "122 Tr......
  • Johnson v. Martignetti
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • April 11, 1978
    ...we may refer to related statutory provisions to determine the meaning of the phrase in § 15. Cf. Lantner v. Carson, --- Mass. ---, --- c, 373 N.E.2d 973 (1978). Section 15A of c. 138 indicates that, with regard to the granting of liquor licenses, the broad legislative concern with direct or......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT